Pursuant to § 90a of the Austrian Notaries Act, civil law notaries may also perform […] official acts using an electronic means of communication (§ 69b). § 69b in conjunction with §§ 79 Section 9, 90a NO represent the central standards for the digital official acts of a notary.
With the Electronic Notarial Incorporation Act (ENG), which came into force at the beginning of 2019, digital GmbH (Austrian limited liability company) formations were possible for the first time. nhp notare was the first notary’s office to take advantage of these new opportunities and carried out the first digital GmbH formation in Austria.
To prevent the further spread of COVID-19, it was necessary to reduce personal contacts to the bare minimum. However, this did not change the need for notarial services, which is why the 4th COVID-19 Act, which was promulgated on 4 April 2020, extended the possibility of digital certification and digital notarisation of deeds to all official actions required for the creation of notarial deeds with § 69b in conjunction with 90a NO for the time being until 31 December 2020. This possibility was created insofar as a legal transaction, a declaration or a legally relevant fact requires the form of a notarial deed or other public deed in order to be valid.
Due to the ongoing pandemic, but also because the application has proven itself in practice, Section 90a NO was transferred to permanent law by the legislature in good time before the end of the year 2020 (on 23.12.2020).
Accordingly, the following are possible (pursuant to § 69 b in conjunction with §§ 79 para 9, 90a NO):
- digital signature certifications
- digital notarial deeds
- digital general assemblies/shareholders’ meetings
It is not possible, however, to produce a certified copy digitally, as the notary must always see the original in order to certify the authenticity of a copy made by him. The creation of electronic testamentary dispositions is also not covered by the Notarial Code (cf. § 70 NO).
In principle, the drawing up of an authentic instrument requires the personal appearance of the party before the certifying authority (notary, possibly court). This is due to the fact that the notary has to convince himself of and confirm the identity of a party (cf. § 55 Para 1 Z 1 NO).
According to the explanatory remarks on the ENG, the reliable identification of the parties by the notary and the duties of verification and due diligence to be observed by the notary are not only an essential point for guaranteeing legal certainty, but also represent a very important aspect of preventing the misuse of the notary’s services for the purposes of money laundering and financing terrorism.
In order to meet this requirement, all persons who digitally sign a document must undergo a video identification procedure (WebID-procedure), which must comply with the requirements pursuant to section 69b para 2 NO as well as the Notary-E-Identification Ordinance (NEIV).
Due to the legal requirements and the technical security requirements, it is thus ensured that both the notary’s compliance with the identification obligations and his obligations to instruct and assist all parties are reliably enabled and guaranteed.
Digital certification via messenger service applications such as WhatsApp, Signal, etc., on the other hand, is not possible due to the lack of security precautions.
The identity of a party must be confirmed both when certifying a signature and when drawing up a notarial deed. Pursuant to § 69b (2) NO, the notary must take precautionary measures to ensure that the identity of a party who is not physically present is verified in a secure and doubtless manner.
This measure essentially consists of the party going through a video identification procedure. The notary does not (typically) carry out this procedure himself, but uses an external provider for this purpose who fulfils all security precautions (for example “Web ID Solutions”). At the end of the procedure, which is carried out with an ordinary internet browser, the notary receives an identification package with the data and screenshots of the respective party.
The video identification procedure must be carried out by each person him- or herself. It usually takes about 10–15 minutes. As part of the process, the person to be identified is connected to a trained Web-ID employee via live video, who then asks the person a few questions and, for example, to hold their ID card up to the computer camera and/or to state their date of birth.
If the party does not yet possess a qualified electronic signature (e.g. mobile phone signature issued by A‑Trust), a qualified electronic signature will also be issued within the scope of the videoident procedure, by means of which documents can then be “digitally signed” in a secure data room.
The party only receives an access link for the videoident procedure when the notary creates an invitation via his data room. In this data room, which is comparable to a secure cloud application, the documents that are to be signed can then be uploaded. The party receives access to the data room after identification by means of video identification.
Once all parties involved in a transaction have access to the data room, the electronic certification can be carried out in the course of a video conference session with the notary. The parties will receive the invitation to the video conference from the notary in good time before the appointment.
The finished digitally signed document then exists as a genuine electronic document; there is no original in paper form. However, at the request of the parties, a certified paper copy of the electronic original can be issued by the notary.
The process of a digital certification essentially looks as follows:
- The parties send the notary the documents to be certified, either in . pdf or . docx format. At the same time, the completed personal data form and a copy of the passport can be submitted.
- The notary creates a secure data room and uploads the documents to the data room. To gain access to this data room, the parties must go through the video identification procedure (Web-ID) at the invitation of the notary. After the notary’s invitation, an automatic link is sent to the parties, with which the parties are redirected to the Web-ID website.
- After identification via Web-ID, the notary receives a notification and will then schedule an appointment for a video conference. The video conference is usually hosted by the notary via webex, but using other video conference platforms is also possible (for example Microsoft Teams or Zoom).
- Digital signing by means of an electronic signature takes place in a video conference arranged by the notary. The notary verifies the identity of the signatories, answers any questions and ensures that the parties know the content of the document and that its signing is done without coercion.
- The certified deed is then a genuine electronic deed, there is no original in paper form. The completed document is usually sent to the parties by e‑mail.
Digital Notarial Deed (Authentic Act)
Notarial deeds can also be drawn up digitally in the course of a video conference. The procedure differs only slightly from digital certification. Here, too, the parties must go through a video identification procedure. The documents to be signed are also uploaded to a secure data room, to which the parties get access after their identification process is completed.
The establishment of digital notarial deeds is not only used for the formation of corporations, but also, for example, for purchase and assignment agreements on GmbH shares.
It is also possible to digitally notarise private documents or to draw up notarial deeds in English. The necessary witnesses must also sign digitally (and, therefore, undergo the WebID procedure if they are not yet in possession of a qualified electronic signature).
Digital GmbH Formation
With the Electronic Notarial Incorporation Act (ENG) in 2019, the possibility was created for the first time in Austria to draw up a notarial deed while the persons involved are not physically present at the notary’s office. With the entry into force of the ENG, the founders of a GmbH are able to establish their company by being connected to the notary via a secure video connection, and the notarial deed will be established electronically or digitally.
A prerequisite for the registration of a limited liability company in the commercial register is the conclusion of a written declaration of establishment/Articles of Association. This founding document of the GmbH requires the form of the notarial deed according to § 4 Sec 3 GmbH Act. The purpose of this obligation is to protect the shareholders through the notary’s duty to advise and instruct them. However, the form of the public deed also protects the general public, as it ensures legal certainty and reliability of business transactions.
According to the explanatory remarks on the ENG, the reliable identification of the parties by the notary and the duties of verification and due diligence to be observed by the notary are not only an essential point for guaranteeing legal certainty, but also represent a very important aspect of preventing the misuse of the notary’s services for money laundering and terrorist financing purposes.
The obligation to have a notarial deed also applies to amendments to the articles of association before the company is entered in the commercial register (addendum to the articles of association).
According to the prevailing expert view, the requirements are only fulfilled by the establishment through an Austrian civil law notary. With the digital establishment, the form of the notarial deed is more easily accessible to the founders of a GmbH.
Powers of attorney are often used in the formation of limited liability companies. Here, too, an appropriate form must be observed (certification, possibly with apostille) and furthermore the grantor of the power of attorney cannot personally avail himself of the advice of the notary.
Powers of attorney for the formation of GmbHs require a special certified power of attorney issued for this individual transaction, which must be attached to the contract according to § 4 Sec 3 GmbHG. In practice, there are often challenges for the founding shareholders to have the power of attorney notarised and signed abroad and to send it to the notary in time.
The Electronic Notarial Incorporation Act therefore provides that the articles of association of a limited liability company may also be drawn up in the form of an electronic notarial deed using an electronic communication facility (audio and video), subject to the technical requirements.
At the same time, a strict standard is set for the notary regarding the fulfilment of the identification process and other duties. If the fulfilment of these duties is not possible, the recording of the notarial deed using an electronic means of communication must be omitted.
The certification of signatures required in connection with the formation of a limited liability company (specimen signature(s), resolutions of the shareholders, application to the Companies’ Register, powers of attorney, etc.) has also been taken into account: these can also be performed digitally via a secure video connection. In the ENG, therefore, for such (special) cases when certification of a manual signature (or an electronic signature) is required, the possibility is also provided for that the certification of the authenticity of the signature (or the electronic signature) by the notary may be carried out without the party him- or herself being present.
For a digital GmbH formation, essentially the same steps are required as for a digital certification. First of all, the notary prepares the required documents, namely the articles of association, a resolution to appoint the managing director, a sample signature sheet, and the application to the Companies’ Register.
Simultaneously, the founders can already begin their video identification procedure. As soon as the parties have access to the data room and the required documents are ready, the GmbH can be established during a video conference arranged by the notary.
The sample signature/specimen signature is special in that it has to be signed twice during the video conference. In a first step, the printed paper document is signed. This is then scanned and transmitted to the notary during the appointment. The notary uploads the sample signature to the data room, whereupon it is signed electronically by the same person.
In case of a digital formation, the articles of association and ancillary documents exist only in electronic form, there are no paper documents. However, a certified paper copy of the electronic original can be issued upon request.
The purpose of a signature is to assign a document to its signatory. The legal basis is the eIDAS regulation of the European Union. To supplement the regulation, the Signature and Trust Services Act was passed in Austria. There is also an implementing ordinance for this law, which regulates the requirements for the creation and issuing of certificates and the corresponding databases in more detail.
The definition according to the regulation is: ’ ”Electronic signature” means data in electronic form which is attached to or logically connected with other electronic data and which is used by the signatory to sign.’
So, first and foremost, it is basically a kind of addendum to an electronic (usually PDF) document.
From a legal point of view, electronic signatures primarily serve three purposes:
The main purpose of a signature is to ensure that the content of the signed document originates from the person signing it. Accordingly, it can be evaluated in particular whether a declaration is forged..
In addition, it can be ensured that an electronic document has not been altered or compromised after it has been signed (e.g. during transmission via the internet).
Signatures should also make the signing person identifiable. For this purpose, the identity of a person must be confirmed by suitable means when a signature certificate is issued.
A distinction is made between simple electronic signatures and qualified electronic signatures. Qualified electronic signatures are created by qualified electronic signature creation devices and are based on a qualified certificate.
In principle, only the qualified electronic signature is equivalent to the handwritten signature (i.e. written form according to § 886 ABGB). However, documents with a simple electronic signature can be admitted as evidence in court (“non-discrimination”).
Digital Shareholders’ Meeting
The possibility of digitally certifying minutes of a general assembly or shareholders’ meeting is given to the notary by § 90a NO. In this case, only the chairperson of the meeting must go through the video identification procedure; for the identification of the other participants, it is sufficient if they are personally known to the chairperson.
The question of whether a virtual shareholders’ meeting may be held according to the articles of association must be strictly separated from the notary’s ability to conduct a virtual meeting. In this context, the Covid-19 Act is relevant. Under certain circumstances, this even provides the right to hold a virtual general meeting.
The Electronic Notarial Incorporation Act (ENG) created the possibility for the first time in Austria to draw up a notarial deed while not all persons involved are actually physically present at the notary’s office. As of the entry into force of the ENG on 1 January 2019, it was possible for the founders of a GmbH to establish their company by being connected to the notary via a secure video connection and the notarial deed being drawn up electronically or digitally.
nhp notare was the first notaries office in Austria to establish a digital GmbH in October 2019 and have already gained extensive experience in this new field of electronic notarial services. Since the 4th COVID-19 Act and the related ordinances entered into force, nhp notare have already accompanied a capital increase of a limited liability company, in the course of which the shareholders’ meeting and the subscription declaration were established in the form of digital notarial deeds and a new managing director was appointed (digitally).
The first completely digital real estate transaction was also successfully accompanied by nhp notare in May 2020. All transaction steps, up to and including registration in the land register, were carried out electronically. nhp notare has provided the data room and initialised the issuing of the digital signatures.
New digital ground was also broken in the area of corporate law: for example, with the help of nhp notare, what is probably the first virtual general assembly of an Austrian public limited company was held to pass a resolution on a cross-border merger from Austria to Germany.
The digital notarisation activities of nhp notare also led to the first registration based of a digital Austrian document in Germany (at the Local Court of Charlottenburg, Berlin) in November 2020.
As already mentioned in the beginning, with the entry into force of the 4th COVID-19 Act, it is now possible to carry out a large part of notarial certification procedures digitally. This has created an alternative to the “conventional notarisation model”, which requires parties to appear in person before the notary to have their signatures certified or to have a notarial deed drawn up.
What is the procedure for a digital certification?
1. you send us the fully completed personal data form for each person who is to sign something, as well as all documents.
2. the notary creates a secure electronic data room (e‑tresor) and registers the parties for its use.
3. in order to be able to identify themselves electronically and subsequently use the data room, each party must go through a legally prescribed video identification procedure (WebID) within 10 days.
4. When the WebID procedure has been successfully completed, the signing of the documents will take place during a video conference scheduled by the notary.
I don’t have an electronic (mobile phone) signature. Is that a problem?
This is not a problem. As part of the videoident procedure, which all parties must go through, a qualified electronic signature can be issued.
How much does a digital certification cost?
In addition to the fee according to the NTG, additional expenses for the secure data room will be charged for electronic certifications. Furthermore, expenses of EUR 20,- per person are incurred for the WebID procedure.
How do I get the certified document?
After all parties have signed, the notary also certifies the signatures electronically and sends the documents to the parties or their legal representatives (via e‑mail). No paper documents are created, the originals exist exclusively in electronic form.
Can one person sign digitally on a document and the other person sign (physically) at the notary’s office?
A “mix” of different forms of signatures (digital and analogue) is generally not provided for, as the original exists exclusively in electronic form and can therefore only be signed electronically.
Can a specimen signature also be digitally certified?
Yes, this is also possible. In this case, the client must have the blank sample signature sheet printed out at the video conference appointment. During the video conference, the sheet is signed by hand. The client then scans the signed specimen signature and sends it by e‑mail to the notary. The notary then uploads the document to the data room, where it is signed again electronically and then digitally certified.